EUROPEAN CREATIVITY AND DIGITAL ECONOMY ARE DROWNING IN A COPYRIGHT SWAMP

2019-03-21

The EU copyright reform needs just one last approval by the European Parliament. It is bulldozer driven by the copyright incumbents and euro-bureaucrats serving them, who are determined to make it happen at all costs. Although days remain to the current term of the European institutions, the EU copyright reform is fast-tracked for the final vote of the European Parliament on March 26, 2019. Official European Parliament accounts trumpet the new dawn already, despite the votes yet to be cast!

To name this reform a copyright reform is a
shame to the real authors and the public. The authentic name would be the
rescue package of digital losers at the expense of European creativity and
consumers. European creativity and digital economy will be happily crushed for
the sake of profit of the incumbent copyright landlords.

To recap the key critical points of the EU
copyright reform:

Article 3 brings further marginalization of
copyright exceptions, which are already minimal in Europe; it introduces
restrictions on access to copyrighted content (data) if you are an ordinary
citizen or entrepreneur.

Article 11 is yet another expansion of copyright
for the protection of digital press publications granted to publishers (but not
to authors!) for a period of 20 years and with a warranty of “fair
remuneration”. In other words, it means the introduction of the new levy
or tax to appease the copyright landlords.

Article 13 legalizes censorship to ensure that
we – consumers – do not enter into the domain of copyright landlords even
inadvertently.

Most of these copyright landlords tended by the
reform happen to be digital losers – such as the recording industry, old school
media and publishers, a swamp of collective management associations and other
intermediaries who are stuck in the 20th century but are trying to maintain their
income at any cost. Analog dinosaurs in the digital world don’t want to change
and refuse to go.

There is no doubt that the copyright system,
like the entire intellectual property system, is in crisis. It was never
designed to regulate the digital content. It needs reform, but the reformers
have to ascertain the purpose of the system first. The purpose of the classical
intellectual property systems (i.e. the reason why it is accepted worldwide as
a tool for promoting creativity / innovation) is that it only rewards
creativity that meets a demand on the free market. Copyright does not guarantee
a financial reward – if your work is crappy and worthless, hold on to your
copyright, but we are not paying for it.

All problems begin when the copyright holders
start to regulate themselves (especially the intermediaries that represent
them), and the pursuit of reward driven purely by greed rather than creativity
begins. Why do they need the unpredictable free market and capricious consumers,
if they can claim “fair compensation” for just holding on to their copyright?!
Just disguise greed with fancy slogans like “value gap” and pretend to care for
the poor authors.

In this way, the European copyright has
gradually become a fundamentally Soviet-style scheme for the absorption (or at
best redistribution) of taxpayers’ money. The result is the stagnation of
creativity and content businesses in
Europe. Countries where copyright policy is unhindered by Soviet inclinations –
the US and some Asian countries – are increasingly overtaking Europe on the digital
economy.

Unlike many Europeans, I had experienced the
Soviet copyright first-hand. For the uninitiated the Soviet copyright is
characterized by:

Expropriation
of economic copyright, in the name of the authors.

Forced
collectivism – the rights of an individual author to make business decisions on
key uses are taken away.

Funding
by taxpayers, not by actual users of copyrighted content.

Focus
on redistribution rather than on royalties for a particular use.

Financial
rewards and privileges for authors are detached from the market value.

Compensation
claims are not based on the specific uses of copyrightable content, but on mere
possibility to access the creative content – in Soviet Union we were prescribed
to purchase certain carefully selected copyright works.

Soviet copyright policy is also characterized by:

Stagnation
– not looking for new ways to commercialize creativity, but aims to maintain
incumbent system at all costs.

Prohibitions
and restrictions – e.g. copyright exceptions (uses, which do not need permission
from the rightholders) are reduced to a strictly limited list, everything that
is not on the list is a copyright infringement.

No
transparency and lack of accountability – who cares who actually gets the
money, right?

Ideological
fundamentalism – if you are not for the system, you are an enemy – anti-author
and pirate.

In small countries, such as Lithuania, additional
distortions are also common – for example the rights to works financed from the
public resources are fully appropriated by the intermediaries. Public funding
for the creativity (movies, books, works of art) is treated as a property, not
as an investment. Have you seen an investor who would give up all rights to an
investment and would not expect any return? This is a definition of charity,
but purpose of charity is to help those in a real need and not to enrich
someone. I am not suggesting that the taxpayers shall be entitled to use publicly
funded works for free, but public funding shall serve public interests instead
of resulting in exclusively private copyright, which benefits the holders only.
For example, part of the profit from a work, financed by public funds shall be repurposed
for the support of new content.

The copyright swamp is absolutely uninterested
in the new creativity, because it first of all means competition for
themselves. Copyright swamp is only interested in money, or, better still, more
of it under a “fair compensation” pretence.

This is what is happening in the EU disguised as a copyright reform for the last 20 years.

What can we do to restore the authenticity of copyright
in Europe, and to promote new creativity and the digital economy? Here are my
suggestions:

Copyright
requires a real reform, which must be shaped not by the analogue generation. In
too many countries the copyright regulators are from the swamp or cosy with it.
People hostile to the digital technologies cannot be in charge of regulating
digital economy.

Copyright
policy must be shaped by all actors of the digital content economy, not just outgoing
rightholders/intermediaries who have failed to adapt to the digital economy –
digital losers.

The
voice of the next generation (digital content) creators and consumers-creators
must be taken into account.

Specific and urgent reforms that are needed the
most:

Recognition
that each of us is both a digital content creator and a digital content user
shall be at the heart of the reform.

Nothing
is created on a void, therefore real and sweeping copyright exceptions have to
be restored.

Limiting
of the non-commercial exceptions shall only be allowed in exchange for lesser
copyright protection.

Individual
rights management must be enabled.

Geoblocking
and other artificial barriers to digital use must be banned.

Predatory
content commercialization practices (e.g. monopolistic and not transparent practices)
must be restricted.

Consumer
and taxpayer funded handouts (fair compensation) to the intermediaries must be
eliminated; these may be replaced with statutory royalties focused on specific
uses and awarded to the original creators only.

The
copyright system must stop the privileges of the intermediaries, i.e.
intermediaries should not have additional rights and safeguards simply because
their business object is copyrighted content. Priority must return to authors
and new creation.

There is no doubt that the creative economy
faces challenges in the context of digital transformation (such as piracy), as
well as social problems (such as the decline of old business models and
resulting social security problems for the older generation authors), but these
problems are largely unrelated to copyright. There are other tools to address
these challenges, and they shall be addressed not at the expense of new creativity.

A lot of content, especially cultural one that
the mass consumers cannot appreciate is already supported by both public and
private resources – scholarships, bonuses, grants, etc., as it was for hundreds
of years before copyright has arrived. For once, digital content entrepreneurs
are also coming up with new solutions. For example, film and book piracy is
solved by the dynamic content (transforming the user, the reader into an
actor). Copying of the dynamic content becomes meaningless, since the copy
eliminates user participation.

Social challenges may be addressed in other
ways, such as re-education, targeted grants and social guarantees for content
creators, etc. It is important that these tools are not abused and choked by
the copyright swamp (they must be strictly separated from the rightholder bias,
collective administration, etc.). Although these copyright issues seem complex,
distant and unrelated to everyday life, in the digital consumer-creator economy
they affect all of us, and especially the younger generation. If history
teaches anything – the Soviet copyright and larger economy succumbed to the
market forces in a violent way. For the sake of creativity and digital future –
wake up Europe!